High Court: Woman suing National Maternity Hospital must hand over her lost medical records

About this case:

• Citation:
  [2020] IEHC 83
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Max Barrett

Mr Justice Max Barrett heard the motion for judgment in default of defence in medical negligence proceedings arising out of an ectopic pregnancy.

Background

The plaintiff, Orla Van Der Zaan, underwent a salpingectomy at the National Maternity Hospital, the defendant, on 4 May 2017. She was discharged the next day, but re-attended the hospital in pain and distress on 6 May 2017. On 9 May 2017, the test results confirmed a benign paratubal serous cyst. Ms Van Der Zaan attended Tallaght Hospital and underwent a further salpingectomy on 16 May 2017.

Ms Van Der Zaan’s case is that the defendant failed to perform a full salpingectomy, failed to record that only a partial salpingectomy was performed, and failed to make sufficient efforts to contact the plaintiff to apprise her of certain test results.

In March 2019 the State Claims Agency asked Ms Van Der Zaan’s solicitor to provide a copy of her medical records. Her solicitor refused to provide documentation but stated that once a defence was issued, they would engage with the discovery process. In April 2019 Ms Van Der Zaan’s solicitor sent an affidavit of verification and requested an immediate delivery of a defence. The State Claims Agency indicated that a defence would be delivered within eight weeks and sought the Tallaght Hospital records. Ms Van Der Zaan’s solicitor issued a 21-day warning letter.

On 7 May 2019 Ms Van Der Zaan’s solicitor wrote indicating that the National Maternity Hospital had been served with a detailed personal injury summons, that it had access to its own hospital records and that once a defence was delivered it would be entitled to seek discovery. On 1 July 2019 the National Maternity Hospital indicated that the “original chart” had been mislaid, and that it understood that Ms Van Der Zaan had a copy of this and requested same.

In November 2019 Ms Van Der Zaan’s solicitor raised concerns that the chart has been mislaid and reiterated that he would reply to discovery requests at the appropriate point. A letter was issued calling for the delivery of a defence. The within motion was issued and served, followed by the issuing of a Voluntary discovery letter.

The National Maternity Hospital issued a reply complaining that all the relevant documentation was not exhibited to the grounding affidavit. Ms Van Der Zaan’s solicitor replied indicating that there was no basis to depart from the ordinary rule whereby a discovery request issued following the closing of pleadings.

Conclusion

Mr Justice Barrett noted that no formal request for discovery issued prior to the motion to be determined, and that when the formal request did issue it came weeks after the issuance of the motion under consideration and months after Ms Van Der Zaan’s solicitor had first stated that he would only respond to requests for discovery after the pleadings closed.

However, the judge said that Ms Van Der Zaaan has known that the chart has been mislaid by the hospital since its July 2019 letter, and that she or her solicitors are the only persons in possession of it. He remarked that no meaningful response has issued to the defendant concerning how to proceed.

The Court considered the judgment of the Supreme Court in McGrory v ESB [2003] 3 IR 407, where Chief Justice Keane observed that “Once proceedings have been instituted, such an examination and full access to the plaintiff’s medical records and interviews with his medical advisors are of assistance in enabling the defendants to form a view as to the amount of damages which the plaintiff is likely to recover and of any lodgement which they should prudently make in court with their defence. Whether or not liability is a live issue in the case, making such material available to the defendant at an early stage of the litigation, instead of withholding it until the action itself when it will have to be produced, can only facilitate the earlier settlement of actions.”

Mr Justice Barrett noted that as the National Maternity Hospital does not hold the mislaid chart and that a copy is needed by the defendant to engage one or more experts to produce one or more expert reports. It is, without such reports, “hamstrung” in terms of investigating matters and having an expert look at the issues of breach of duty and causation.

The court directed that Ms Van Der Zaan provide back to the National Maternity Hospital a copy of the mislaid chart, and ordered that a defence to the within proceedings be entered within 12 weeks of the receipt of the mislaid chart.